The Quagmire Of Interim Injunctions In Probate Cases

Under Indian Law, validity of a will can be adjudicated either in (a) general civil proceedings by a civil court; or in (b) special testamentary proceedings [under the provisions of the Indian Succession Act, 1925 (ISA)]. The distinction between these proceedings is well elucidated in their scope. However, a tabular representation of the key differences between civil proceedings and testamentary proceedings insofar as a 'will/testament' is concerned is as follows:

As findings in testamentary proceedings operate in rem, proceedings initiated under the ISA are subject to certain procedural rigors, which are otherwise alien to ordinary civil proceedings^[2].

Insofar as interlocutory protection of the estate during testamentary proceedings is concerned, the ISA, by virtue of Section 247 and Section 269, provides the procedural framework for 'administration of estate' during the pendency of testamentary proceedings. A plain reading of the aforesaid provisions indicates that (a) Section 247 of the ISA empowers the Court to appoint an administrator pendente lite during the pendency of probate proceedings; and (b) Section 269(1) of the ISA empowers to the Court to protect the property from harm or loss until probate is granted or an administrator pendente lite is appointed.

While there is no real dispute over the power of a testamentary court to appoint an administrator pendente lite, recourse is often taken to Order XXXIX Rule 1 and 2 in testamentary proceedings when orders for interlocutory injunction are required to be passed, in order to preserve the subject matter of the testament in dispute. However, there is considerable conflict in opinion across High Courts over the competence of the 'testamentary court' to pass interlocutory injunctive reliefs in exercise of powers under Order XXXIX Rule 1 and 2 of the CPC; or in exercise of inherent powers under Section 151 of the CPC.

As far back as 1951, a division bench of the Calcutta High Court^[3] was called upon to decide the powers and jurisdiction of a testamentary court to protect the properties which are the subject matter of testamentary disposition. After considering Section 247 and Section 269 (1) of the ISA r/w Order XXXIX Rule 1 and 2 of the CPC, the Court ruled that '..the court of probate is not thereby wholly incompetent to grant a temporary injunction even in extreme cases; such order of injunction is to be issued only in aid of & in furtherance of the purpose for which a grant is made by a probate court. It is, therefore, open to the probate court not only to appoint an administrator pendente lite, but also to issue an order of injunction, temporary in character, pending the appointment of an administrator pendente lite. If such powers are exercised in probate cases by a probate court, there is no reasonable chance of an property being dissipated, pending the actual grant of a probate or the appointment of an administrator'. The aforesaid view stands echoed in subsequent rulings of the Delhi High Court^[4], as well as the Calcutta High Court^[5], which reiterated that a testamentary court was competent to pass an order of injunction in an appropriate case, in order to preserve the subject properties.

However, discordant note against the aforesaid proposition was authoritatively struck by a division bench of the Bombay High Court in 2011^[6]. After examining existing pronouncements on the issue, it was observed that 'It would not be permissible, in the face of the specific provision of sub-section (2) of Section 269 to read into the provisions of Sections 266 and 268 a general power to grant interlocutory relief even prior to the grant of probate in respect of the property which is alleged to form part of the estate of the deceased. This construction is fortified by the principle that the testamentary Court in proceedings for probate is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. The probate Court is not concerned with questions relating to the property itself. Though an assiduous attempt was made on behalf of the Appellant to rely upon the provisions of the Act, to which a reference has been made earlier, the Court in this case is essentially concerned with the powers of the testamentary Court when it exercises its jurisdiction in a petition for the grant of probate. In view of the express provision which is contained in Section 269(2), there can be no recourse to the exercise of the inherent powers of the Civil Court. This, however, would not preclude recourse to a civil suit for obtaining relief necessary for the protection of the property.' Placing reliance on the aforesaid view, applications seeking interlocutory injunction under order XXXIX Rule 1 and 2 of the CPC, which were filed in testamentary proceedings, were dismissed by benches of the Delhi High Court^[7], Bombay High Court^[8] and Calcutta High Court^[9].

An analysis of the discordant views reveals that it is primarily predicated on Section 269(2) of the ISA, which prohibits the exercise of powers under Section 269(1) 'when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate'. Courts have read Section 269(2) of the ISA as an absolute and conscious restraint on the powers of a testamentary court to grant injunctions; and the precedents which permit such course of action have been distinguished in lieu of their apparent failure to consider Section 269(2) of the Act.

A reading of the ISA reveals a statutory intent towards conducting testamentary proceedings in accordance with the provisions of CPC^[10], save insofar as they contradict with any provisions of the ISA. As such, reading Section 269(2) of the ISA as an absolute restraint on the power to grant an injunction does not appear harmonius with the overall statutory intent to conduct testamentary proceedings in accordance with the CPC. Pertinently, the discordant view is also without any consideration of the effect of Section 295 of the ISA, which expressly stipulates that 'in any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.' Therefore, in the absence of any discernible intent in the ISA to completely exclude the applicability of Order XXXIX of the CPC, it is not prudent for Courts to treat Section 269(2) of the ISA as an absolute restraint on the power of a testamentary court to grant an injunction either while exercising powers under Order XXXIX Rule 1 and 2 of the CPC or inherent powers under Section 151 of the CPC^[11].

There is no quarrel over the legal proposition that a testamentary court does not concern itself with issues of title; and is only concerned with the validity of the testament. However, at the same time, it would be improper for a testamentary court to completely distance itself from the subject matter of the testament it seeks to adjudicate upon, solely on such ground. It cannot be ignored that absolute restraint on the power of testamentary courts against entertaining applications under Order XXXIX Rule 1 and 2 of the CPC would invariably lead to multiplication of proceedings; inasmuch as aggrieved parties would then have to take compulsory recourse to filing separate civil suits to obtain injunctive relief.

As such, exercise of the power to grant injunction ought to be permitted, so long as the same can be exercised without involvement of any third-parties who have no caveatable interest in the estate of the deceased^[12]. It is prudent and expedient that testamentary courts are clothed with powers to pass interlocutory orders for injunction if the circumstances so warrant, particularly in cases where there is no serious dispute over the testator's title in the subject properties. At the same time, if the testamentary court is of the opinion that there are disputed facts in respect of the title of the testator in the subject properties, it would be prudent for the testamentary court to refuse orders of injunction, and defer the parties to voice their grievances in civil proceedings. Such an approach not only ensures that a testamentary court does not transgress its jurisdiction, but it also ensures that interest of justice remains the Court's paramount consideration.

End Notes & References

1. Part IX of the Indian Succession Act, 1925 ↑

2. Atula Bala Dasi v. Nirupama Devi, AIR 1951 Cal 561. ↑

3. Kulbir Singh v. State, 52 (1993) DLT 57. . ↑

4. Harsh Vardhan Lodha v. Ajay Kumar Newer, decision dated 19.05.2016 by the Hon'ble High Court of Calcutta in TS 6 of 2004. ↑

5. Ramchandra Ganpatrao Hande alias Handege v. Vithalrao Hande, AIR 2011 Bom 136. ↑

6. Fauzia Sultana v. State and Anr., 2022:DHC:4543 ↑

7. Savita v. Vikas, decision dated 2.11.2020 by the Hon'ble High Court of Bombay in Testamentary Petition (L) No. 3195 of 2020. ↑

8. Debaditya Mukherjee v. Debika Banerjee, decision dated 29.11.2024 by the Hon'ble High Court of Calcutta in T.S. No. 7 of 2023. ↑

9. Section 268 and Section 295 of the Indian Succession Act, 1925. ↑

10. Sarup Singh v. GNCTD and Ors., 2022: DHC: 004814. ↑

11. Krishna Kumar Birla v. Rajendra Singh Lodha and Ors., 2008 INSC 424. ↑